The short answer is no. It is not up to the child to decide. However, a court will consider the expressed preference of a child to live with one parent or the other. The older and more mature the child, the more weight the judge will give to that child’s desires.
This issue may come up during divorce proceedings. It also commonly arises long after divorce, when circumstances change or the child grows older. It may be necessary to go back to court to modify the custody agreement and parenting plan. It could even trigger a change in child support.
The court must consider the wishes of a child in custody matters
New Jersey’s child custody statute sets out 14 factors a court must consider when determining custody and visitation. One of those factors is “the child’s parental preference if of a sufficient age and capacity to reason.” That part of the statute is purposely vague, giving judges latitude to make case-by-case decisions.
There is no magic age when a teenager’s wishes will be taken seriously by a judge. Some 12-year-olds might have the maturity to present a persuasive argument. Conversely, some 17-year-olds can’t articulate what they had for lunch. But as a general rule of thumb, the older the child the more likely the judge will honor their preference.
The court has the final say
So a youth’s preference must be considered, but it is only one factor, and ultimately it is the court’s discretion. In the case of an older teenager, like 15 or 16, the judge will likely probe why the child wants to live with the other parent. It could be that one parent provides a supportive environment or the child has developed a closer bond. Or maybe they feel they would have more freedom with the other parent, or maybe the teen wants to live closer to their boyfriend/girlfriend.
In a contested custody case or modification hearing, the judge may interview the child away from the influence of the parents. The overriding concern in custody matters is the best interests of the child. The judge may decide the child’s wishes do not align with their best interests. If court does honor the child’s request, the parenting plan and custody order will have to modified accordingly.